Citation Nr: 0605668
Decision Date: 02/28/06 Archive Date: 03/01/06
DOCKET NO. 02-14 170 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUE
Entitlement to an increased rating for arthritis of the
cervical spine, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Christopher J. Gearin, Counsel
INTRODUCTION
The veteran had active military service from February 1955 to
March 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a February 2002 rating decision in which
the RO denied the veteran's claim for a rating in excess of
20 percent for arthritis of the cervical spine. The veteran
filed a notice of disagreement (NOD) in March 2002, and the
RO issued a statement of the case (SOC) in July 2002. The
appellant filed a substantive appeal (via VA Form 9, Appeal
to Board of Veterans' Appeals) in August 2002.
In October 2003, the Board remanded this matter to the RO for
further action. After accomplishing the requested action to
the extent possible, the RO continued the denial of the claim
(as reflected in the August 2005 supplemental SOC (SSOC)) and
returned this matter to the Board for further appellate
consideration.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. Medical evidence of record shows no more than overall
moderate limitation of motion of the cervical spine.
CONCLUSION OF LAW
The criteria for a disability rating greater than 20 percent
for arthritis of the cervical spine are not met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 4.1-4.7, 4.21, 4.40. 4.45, 4.59, 4.71a, Diagnostic
Code 5242 (2005); 38 C.F.R. § 4.71a, Diagnostic Codes 5003,
5290 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
At the outset, the Board notes the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, and 5107 (West 2002 & West 2005).
To implement the provisions of the law, VA promulgated
regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2005). The VCAA and its implementing regulations
include, upon the submission of a substantially complete
application for benefits, an enhanced duty on the part of VA
to notify a claimant of the information and evidence needed
to substantiate a claim, as well as the duty to notify the
claimant of what evidence will be obtained by whom. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they
define the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159(c).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board has
determined that all notification and development action
needed to render a fair decision on the claim or a rating in
excess of 20 percent for arthritis of the cervical spine has
been accomplished.
Through October 2001 and March 2004 notice letters, a July
2002 SOC, as well as April 2003 and August 2005 SSOCs, the RO
notified the veteran and his representative of the legal
criteria governing the claim, the evidence that had been
considered in connection with the appeal, and the bases for
the denial of the claim. After each, they were afforded the
opportunity to respond. Hence, the Board finds that the
veteran has received sufficient notice of the information and
evidence needed to support his claim and has been afforded
ample opportunity to submit such information and evidence.
The Board also finds that the October 2001 and March 2004
notice letters satisfy the statutory and regulatory
requirement that VA notify a claimant what evidence, if any,
will be obtained by the claimant and which evidence, if any,
will be retrieved by VA. See Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002) (addressing the duties imposed by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those
letters, the RO notified the veteran that VA was required to
make reasonable efforts to obtain medical records, employment
records, or records from other Federal agencies. The RO also
requested that the veteran identify any medical providers
from whom he wanted the RO to obtain and consider evidence.
Furthermore, the veteran was requested to provide the RO with
any evidence or information in his possession pertaining to
his claim.
Also as regards VA's notice requirements, the Board notes
that, in the decision of Pelegrini v. Principi, 18 Vet. App.
112 (2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim(s); (2) the evidence, if any, to be obtained by VA;
(3) the evidence, if any, to be provided by the claimant; and
(4) a request by VA that the claimant provide any evidence in
the claimant's possession that pertains to the claim(s).
As indicated above, the first three of Pelegrini's content of
notice requirements clearly have been met in this case. With
respect to the fourth requirement, the Board notes that the
veteran has not explicitly been advised to provide any
evidence in his possession that pertains to his claim.
However, the claims file reflects that the veteran has
submitted in support of his claims pertinent service medical
records that he had in his possession. As such, the Board
finds the veteran to be on notice to provide any evidence in
his possession that pertains to the claim, and on these
facts, the RO's omission is harmless. See ATD Corp. v.
Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf.
38 C.F.R. § 20. 1102 (2005).]
However, Pelegrini also held that the plain language of 38
U.S.C.A. § 5103(a) (West 2002), requires that notice to a
claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," the Secretary receives a
complete or substantially complete application for VA-
administered benefits. In that case, the Court determined
that VA had failed to demonstrate that a lack of such
pre-adjudication notice was not prejudicial to the claimant.
In the case now before the Board, as noted above, the
documents meeting the VCAA's notice requirements were
provided to the veteran before and after the February 2002
rating action on appeal. The Board finds that the lack of
full, pre-adjudication notice in this appeal does not, in any
way, prejudice the veteran. In this regard, the Court has
also held that an error in the adjudicative process is not
prejudicial unless it "affects a substantial right so as to
injure an interest that the statutory or regulatory provision
involved was designed to protect such that the error affects
'the essential fairness of the [adjudication].'" Mayfield
v. Nicholson, 19 Vet. App. 103 (2005).
The Board finds that, with respect to the matter herein
decided, any delay in issuing section 5103(a) notice was not
prejudicial to the veteran because it did not affect the
essential fairness of the adjudication, in that each claim
was fully developed and re-adjudicated after notice was
provided. As indicated above, the July 2002 SOC, as well as
April 2003 and August 2005 SSOCs notified the veteran what
was needed to substantiate his claim and also identified the
evidence that had been considered with respect to the claim.
Furthermore, in the October 2001 and March 2004 notice
letters, the RO advised the veteran of VA's responsibilities
to notify and assist him in his claims. After the notice
letters, SOC, and SSOCs the veteran was afforded an
opportunity to respond. The veteran has not identified any
private medical treatment providers from whom he wanted the
RO to obtain records.
The Board also points out that there is no indication
whatsoever that any additional action is needed to comply
with the duty to assist in connection with the claim
currently under consideration. The veteran's service medical
records are associated with the claims file, as are VA
treatment records. The veteran has been afforded a number of
VA examinations in connection with his claim, the reports of
which are associated with the claims file. Significantly,
neither the veteran nor his representative has identified,
and the record does not otherwise indicate, any additional,
existing evidence pertinent to the claim for a rating in
excess of 20 percent for arthritis of the cervical spine that
needs to be obtained.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claim is harmless. See
ATD Corp., 159 F.3d at 549; Cf. 38 C.F.R. § 20. 1102.
Under these circumstances, the Board finds there is no
prejudice to the veteran in proceeding, at this juncture,
with a decision on the claim on appeal.
II. Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2005). When a question arises
as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating. 38 C.F.R. § 4.7. After careful consideration
of the evidence, any reasonable doubt remaining is resolved
in favor of the veteran. 38 C.F.R. § 4.3. The veteran's
entire history is reviewed when making disability
evaluations. See generally 38 C.F.R. 4.1; Schafrath v.
Derwinski, 1 Vet. App. 589 (1995). However, the current
level of disability is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
In this case, the 20 percent rating for the veteran's
service-connected arthritis of the cervical spine has been
assigned under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5290,
indicating that the veteran has arthritis evaluated on the
basis of limitation of motion of the cervical spine
(consistent with the provisions of Diagnostic Code 5003).
See 38 C.F.R. § 4.27.
By regulatory amendment effective September 26, 2003,
substantive changes were made to the schedular criteria for
evaluating diseases and injuries of the spine. As there is
no indication that the revised criteria are intended to have
retroactive effect, the Board has the duty to adjudicate the
claim only under the former criteria for any period prior to
the effective date of the new rating criteria, and to
consider the revised criteria for the period beginning on the
effective date of the new provisions. See Wanner v.
Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet.
App. 461, 467 (1997). See also VAOPGCPREC 3-2000 (2000) and
7-2003 (2003). The retroactive reach of the revised
regulation under 38 U.S.C.A. § 5110(g) can be no earlier than
the effective date of that change.
The Board notes that the RO has addressed, and given the
veteran notice of, the former and revised rating criteria.
(See August 2005 SSOC). Hence, there is no due process bar
to the Board also applying the former and revised criteria,
as appropriate.
Prior to September 26, 2003, disorders of the cervical spine
were evaluated under Diagnostic Code 5290, for limitation of
motion of the cervical spine, which provides for 20 percent
evaluation for moderate limitation of motion, and a 30
percent evaluation for severe limitation of motion. 38
C.F.R. § 4.71a (2003). Unfavorable ankylosis of the cervical
spine warranted a 40 percent rating and favorable ankylosis
warranted a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic
Code 5287 (2003).
Under the revised criteria, degenerative arthritis of any
portion of the spine is evaluated under Diagnostic Code
5242; however, the actual rating criteria are contained in a
General Rating Formula . Pertinent to the cervical spine,
that formula provides for assignment of a 10 percent rating
when forward flexion of the cervical spine is greater than 30
degrees but not greater than 40 degrees; or, combined range
of motion of the cervical spine is greater than 170 degrees
but not greater than 335 degrees; or, there is muscle spasm,
guarding, or localized tenderness not resulting in abnormal
gait or abnormal spinal contour. A 20 percent rating is
assignable when forward flexion of the cervical spine is
greater than 15 degrees but not greater than 30 degrees; or,
the combined range of motion of the cervical spine is not
greater than 170 degrees; or, there is muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed lordosis,
or abnormal kyphosis. A 30 percent rating is assignable for
forward flexion of the cervical spine 15 degrees or less; or,
favorable ankylosis of the entire cervical spine. Finally,
the maximum 40 percent rating for cervical spine disability
is only assignable for unfavorable ankylosis of the entire
cervical spine.
Further, regardless of whether the former or revised criteria
is considered, when evaluating musculoskeletal disabilities,
VA may, in addition to applying schedular criteria, consider
granting a higher rating in cases in which the claimant
experiences additional functional loss due to pain, weakness,
excess fatigability, or incoordination, to include with
repeated use during flare-ups, and those factors are not
contemplated in the relevant rating criteria. See 38 C.F.R.
§§ 4.40, 4.45 (2005); DeLuca v. Brown, 8 Vet. App. 202, 204-7
(1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R.
§ 4.45 are to be considered in conjunction with the
diagnostic codes predicated on limitation of motion. Johnson
v. Brown, 9 Vet. App. 7 (1996).
The Board finds that the evidence of record prior to
September 26, 2003 is not reflective of a disability picture
that more nearly approximates the criteria for a rating in
excess of 20 percent pursuant to Diagnostic Code 5290.
According to the November 2001 VA examination report, on
forward motion of the cervical spine, the veteran could touch
his chin to his chest. He also had extension to 30 degrees.
Although tenderness was noted on palpation, no more than
overall moderate loss of motion was demonstrated.
The Board has considered the VA outpatient treatment records
dated prior to September 26, 2003 that are of record,
however, they do not reflect specific range of motion
findings regarding the cervical spine disorder. While the
outpatient records reflect that the veteran sought treatment
for neck pain, and pain was exhibited during so November
2001, there is no objective indication that the ion that the
veteran's pain resulted in any functional loss in addition to
that shown objectively. Hence, there is no basis for
assignment of a higher rating under the provisions of
38 C.F.R. §§ 4.40 and 4.45, and DeLuca.
The Board further finds that, since September 26, 2003, a
rating in excess of 20 percent is not warranted pursuant to
renumbered Diagnostic Code 5242 and the General Rating
Formula.
According to a March 2005 VA examination report, the veteran
had forward flexion of the cervical spine to approximately 35
degrees and extension to 20 degrees. The examiner noted some
palpable spasm in the cervical paraspinal musculature more in
the left cervical paraspinal musculature than on the right.
The veteran had 5/5 strength of all major muscle groups,
bilateral upper extremities. His sensation was slightly
diminished globally in the left upper extremity compared to
the right. His deep tendon reflexes were 2+ in his right
upper extremity compared to 1+ in his left upper extremity.
He had a negative Hoffman's sign bilaterally. The examiner
noted that the radiographs revealed significant multilevel
cervical degenerative spondylosis. The assessment was
cervical spondylosis with questionable myelopathy. The
examiner opined that he did not believe that the veteran's
range of motion was additionally limited by pain, fatigue,
weakness, or lack of endurance following repetitive use.
As this evidence clearly does not reflect forward flexion of
the cervical spine 15 degrees or less, or, favorable
ankylosis of the entire cervical spine, the criteria for the
next higher, 30 percent rating under the General Rating
Formula simply are not met. Further, while pain on
examination was recorded, given the March 2005 examiner's
comments, and in the absence of any contrary evidence, this
record also presents no basis for assignment of any higher
rating pursuant to the criteria of 38 C.F.R. §§ 4.40 and
4.45, or DeLuca.
The Board further finds that no other provision of either
the former or revised rating schedule provides a basis for
assignment of any higher rating for the veteran's cervical
spine disability. In this regard, the Board notes that,
absent evidence of a fractured vertebrae or ankylosis,
evaluation of the disability under former Diagnostic Codes
5285, 5287, or 52857 is not warranted. There also is no
medical indication that the veteran currently suffers from
intervertebral disc syndrome of the cervical spine as a
progression of the disability for which service connection
has been granted, so as to warrant evaluation of the
disability under either former Diagnostic Code 5293, or
revised Diagnostic Code 5243.
The above determinations are based upon consideration of
applicable provisions of the rating schedule. Additionally,
the Board finds that there is no showing that the veteran's
disability currently under consideration reflects so
exceptional or so unusual a disability picture as to warrant
the assignment of a higher rating on an extra-schedular
basis. See 38 C.F.R. § 3.321 (2005) (cited to in the June
2005 SSOC). In this regard, the Board notes that the
disability is not objectively shown to markedly interfere
with employment (i.e., beyond that contemplated in the
assigned rating). The condition also is not shown to warrant
frequent periods of hospitalization or to otherwise render
impractical the application of the regular schedular
standards. In the absence of evidence of such factors as
those outlined above, the Board is not required to remand the
claim to the RO for the procedural actions outlined in 38
C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337,
338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
For all the foregoing reasons, the Board finds that the
veteran's cervical spine disability is appropriately
evaluated as 20 percent disabling, and that there is no basis
for assignment of a higher rating under either the former or
revised applicable rating evaluation; hence, the claim must
be denied. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against the veteran's claim, that doctrine is not applicable
in the instant appeal. See 38 U.S.C.A § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
A rating in excess of 20 percent for arthritis of the
cervical spine is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs